This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Arup Kumar Dasgupta.
The case of the complainant’s in short is that the complainant wanted to purchase a new flat for his as well as his family member and for this reason he met with O.P. No.1, who is the developer of M/s.Stargazer Enterprise and after visiting the schedule property i.e. project of the O.P. and on good faith the complainant paid Rs.50,000/- in advance to the developer on 20.8.2010 for purchasing the schedule flat and in this regard the O.P. issued a receipt.
The complainant proposed to the developer i.e. O.P. to prepare/make an agreement. After lapsed of four months the O.P. prepared an agreement on 14.12.2010 but in the said sale agreement the O.P. did not mention the time limit i.e. when the O.P. deliver the flat to the complainant. Thereafter going through the entire agreement the complainant became perplexed and requested to the O.P. to make fresh agreement but the O.P. took false pretext tried to avoid him and also trying to grab or misappropriate the entire amount of the complainant.
The complainant stated that the flat measuring about 400 Sqft. which the O.P. committed to sell before the complainant, has been sold out by the O.P. to the third party without taking any prior consent from the complainant, which is absolutely illegal in the eye of law. The complainant became perplexed and approached before the O.P. and O.P. proposed another flat measuring 940 Sqft.
The opposite party demanded Rs.46,000/- and complainant also paid the same to the developer on 20.1.2011 on good faith with a hope that the O.P. allot him a flat within a time. That after preparing a further sale agreement the O.P. demanded Rs.54,000/- from the complainant and complainant also paid Rs.54,000/- to the O.P. on 30.6.2013. But the opposite party very cleverly and illegally taken back the old money receipt and issued a fresh money receipt amounting to Rs.1,50,000/- dated 30.6.2013.
The complainant several times requested the O.P. to for preparation of sale agreement but after lapse of one year on 20.5.2014 the O.P. prepared a separate sale agreement. But this time also the O.P. intentionally did not mention the specific time within which he would deliver the proposed flat to the complainant.
Be it noted here that at the time of making first agreement on 14.12.2010 it was agreed between the parties that complainant would pay for purchasing the proposed flat measuring 400 Sqft. @ Rs.1300/- per Sqft. i.e. Rs.5,20,000/- but the said agreement was cancelled due to non deliver of proposed flat. Thereafter another agreement was made for measuring 940 Sqft. flat @ Rs.1700/- per Sqft. i.e. complainant would be paid Rs.15,98,000/- but till today said flats are intangible before the complainant.
In this situation the complainant compelled to hire rent room amounting to Rs.7000/- only under the owner of Sri Biswajit Nandy under the leave and licensee agreement dated 24.4.2017. Finding no other alternative the complainant has compelled to file this case before this Forum with a prayer to direct the O.P. to refund Rs.1,50,000/- along with interest @ 15% from the date of receiving of the amount, to pay Rs.50,000/- as compensation for mental pain, agony and harassment and to pay Rs.10,000/- towards litigation cost.
The O.P. contested this case by filing written version denying inter-alia all the material allegation as leveled against him. This O.P. submits that he is the developer and runs his business in the name and style “Stargazer Enterprise”. The complainant intends to purchase a residential flat measuring 400 Sqft. (with S.B. Area) at 100/f, J.N.Lahiri Road, Serampore, Hooghly and both the parties entered into an agreement for sale and the O.P. received Rs.50,000/-. But after some day the complainant said that the flat is too small for his family and proposed the O.P. to provide him another spacious flat at his another project. The O.P. accepted his proposal and committed to provide him another flat at his another project at 82/6, Patua Para lane, Serampore under Serampore Municipality. The complainant also proposed to adjust the previous advance amount with the new flat and on that basis the complainant and the O.P. again entered into an another agreement for sale which was executed on 15.8.2013 and the complainant paid Rs.1,00,000/- to the O.P. i.e. total Rs.1,50,000/- was received as advance amount against the new flat. The proposed are of the said flat was 940 Sqft. But after completion of the said flat the O.P. requested the complainant to make payment the rest amount and arrange for registration of sale deed in favour of the complainant. But the complainant demanded to hand over the possession of the said flat without making further payment. The complainant committed to make payment after days when his financial condition will be settled. The O.P. was not agreed to hand over the possession of the said flat. The said flat is till is in the possession of the O.P. and ready to hand over the same to the complainant after receiving the balance amount. The O.P. also proposed to return the advance amount i.e. Rs.1,50,000/- and made cancel all the transaction/agreement executed and settled by and between them. Hence, this case.
Points for consideration
- Whether complainant is a consumer ?
- Whether there is deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get relief as prayed for?
DECISION WITH REASONS
All the points are taken up together for convenience and brevity of discussion of this case.
Both side are filed evidence in chief and has also filed the two agreements which is made between the parties. In the evidence in chief the complainant has stated his case as per his written complaint. The complainant stated that he paid Rs.1,50,000/- to the O.P. on 30.6.2013. The O.P. admits the totality of complaint case regarding the first agreement for sale of 400 Sqft. flat and second agreement for sale of 940 Sqft. Flat. The price of which Rs.5,20,000/- and Rs.15,98,000/- respectively. Now the situation is that complainant is unable to take the flat wherein the record shows the O.P’s case narrating that the flat is ready for handing over the same. The complainant in his prayer prayed for return of Rs.1,50,000/- with 15% interest and other payment for mental agony etc. O.P. also agrees to give this amount of Rs.1,50,000/- or flat to the complainant. But the complainant is unwilling to act in accordance with the terms and conditions of the agreement because the flat was not ready as per the agreement. The O.P. also put his leg and states that he is ready to pay Rs.1,50,000/- which he taken from the complainant as advance money.
Perused the evidence before us. It is fact that complainant and O.P. executed two agreements some intervals. At the time of first agreement O.P. took Rs.50,000/- and later O.P. took Rs.1,00,000/- as advance money. Now complainant is reluctant to get his flat due to reason stated in his evidence as there is no legal imperilment and O.P. intends to act in fulfilling the contract by returning back Rs.1,50,000/- as per desire of the complainant. Accordingly, after considering the record and conduct of both sides relying on their statement on oath we are of opinion that the complainant’s case be and the same is allowed. But we modify the prayer of the complainant. Hence, it is
Ordered
that the complaint case be and the same is allowed on contest against the O.P.
The O.P. is liable to pay Rs.1,50,000/- to the complainant along with interest @7% from the date of second contract from 20.5.2014 till its realization. The O.P. is further directed to pay Rs.10,000/- as compensation for mental pain and agony. The O.P. is also directed to pay litigation cost of Rs.5000/-. The above all payment will be made by issuing account payee cheque in the name of the complainant i.e. Arup Kr. Dasgupta within 45 days, failing which the complainant is at liberty to execute the same through this Forum.
Let the copies of this order be supplied to the parties free of cost.
